Does the Arizona Immigration Law Violate the International Convention for the Elimination of Racial Discrimination?

by Julian Ku

Yes, says Human Rights Watch in this press release. According to HRW, the new (and hotly controversial Arizona law) is in conflict with ICERD. I am troubled by the AZ law and think it is likely preempted by other federal law, but I am baffled as to how the AZ law could be a clear violation (or even any kind of violation) of ICERD. Here is HRW’s argument:

Under the new law, police officers will be empowered to stop and interrogate any person whom they “reasonably suspect” might be in the United States illegally. The law includes provisions allowing Arizona residents who believe the local police are not enforcing the law vigorously enough to sue a city or town. As a result, police officers will be under pressure to make an arrest, even when in doubt, rather than risk a lawsuit, resulting in wrongful arrests and unfair enforcement, Human Rights Watch said.

While Arizona’s governor, Jan Brewer, has required training for police officers to prevent “racial profiling” – acting on the basis of racial or ethnic characteristics – police will have little to go on other than an individual’s appearance when choosing whom to stop. People of Latino descent, whether US citizens, legal residents, or undocumented persons, will be most at risk.

The Convention against Racial Discrimination requires the federal and all state and local governments to ensure that their immigration policies do not have the effect of discriminating against persons on the basis of race, color, descent, or national or ethnic origin. This includes ensuring that non-citizens enjoy equal protection and recognition before the law. The US government is prohibited from engaging in acts or the practice of racial discrimination against persons or groups of persons and must “ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.

Emphasis added. I think this argument is very unpersuasive. Plainly, a nation has a right under ICERD to enforce its immigration laws against illegal aliens and non-citizens. It is simply not plausible to me that ICERD requires ensuring that non-citizens enjoy equal protection. This is stated in Article 1:2 and 1:3 of ICERD

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

Emphasis added. If a particular region of a country has immigrants of one race, it can’t possibly violate ICERD to enforce immigration laws against that group. So this whole HRW claim is based on the assumption that a law that facially does not discriminate on the basis of race, and which its proponents say is not intended to discriminate on the basis of race, and which its executive officials say will not use racial profiling, is a plain violation of ICERD.

Certainly, Article 2:1:c instructs each nation to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” But we don’t know what the effect of the AZ law will be. But given that immigration enforcement seems plainly treated as a different category under ICERD, the HRW analysis seems borderline frivolous. The AZ law will probably be struck down, or perhaps repealed, but there is zero chance of this weak ICERD argument being part of the analysis.

4 Responses

I believe that any State may legislate to regulate the issue of immigration. However, when just being illegally in the territory is punishable up to six months in jail, that may be infringing the right to due process, sufficiently established in international law. Illegal immigrants have the right to seek protection from the diplomatic authorities of their country, for example.

Moreover, it seems excessive to give to the police the opportunity to ask immigration status to any person with the sole excuse to have a reasonable suspicion about that person. This certainly can lead to abuses of governmental authorities, violating the ban of discrimination in international law.

I think the distinction between “authorized” and “unauthorized” non-citizens would futher HRW’s argument. For example, I assume that ICE does not vigorously investigate Legal residents to ensure they are carring their alien registration documents on them.

Therefore, the pre-emption argument ties into what HRW is stating–that AZ’s law’s effect on Legal Permanent residents will be violative of ICERD because the Federal government, for whatever reason, does not unduly target LPR’s for the crime of not having their registration documents on them.

“Time and time again, courts have determined and made it very clear that the ability to regulate and enforce immigration is exclusively in the federal domain,” says Karen Tumlin, managing attorney for the National Immigration Law Center. “This law violated the federal space by very clearly trying to regulate and enforce immigration law.”

Julian, the CERD treaty committee has been backtracking from the letter of these provisions – see its General Comment XXX, which concludes that parties should “ensure that immigration policies do not have the effect of discriminating against persons on the basis of race.”

5.04.2010
at 10:31 pm EST Peter Spiro

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